Citation Nr: 21023903 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-16 799 DATE: April 21, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is remanded. Entitlement to service connection for a bilateral leg condition, to include chronic thrombophlebitis and deep venous thrombosis claimed as blood clots, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to September 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A June 2014 Board decision denied entitlement to nonservice-connected pension benefits, reopened a claim of entitlement to service connection for a bilateral leg condition, and remanded claims of entitlement to service connection for hepatitis B, hepatitis C, a respiratory disorder, hypertension, an acquired psychiatric disorder, a bilateral leg condition and TDIU. A February 2016 Board decision granted entitlement to service connection for hepatitis B, hepatitis C, and remanded claims of entitlement to service connection for a respiratory disorder, hypertension, an acquired psychiatric disorder, a bilateral leg condition and TDIU. A May 2019 Board decision denied claims of entitlement to service connection for a respiratory disorder, hypertension, an acquired psychiatric disorder, a bilateral leg condition and TDIU. The Veteran appealed the Board’s denials of entitlement to service connection for an acquired psychiatric disorder, a bilateral leg condition and TDIU to the United States Court of Appeals for Veterans Claims (Court); entitlement to service connection for a respiratory disorder and hypertension have been abandoned. An August 2020 memorandum decision vacated the Board’s denials of entitlement to service connection for an acquired psychiatric disorder, a bilateral leg condition and TDIU, and remanded the claims to the Board for action consistent with the terms of the memorandum decision. The Board finds that another remand is required prior to final adjudication of the claims on appeal as there has not been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although examinations were provided in August 2018, for the reasons provided below, they are inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. The Veteran and his counsel contend that verbal and physical abuse from basic training instructors, and fear from hand-to-hand combat and live-fire exercises caused the Veteran’s claimed condition. See Appellate Brief (January 2021). The Veteran also contends that his depression is secondary to service-connected hepatitis B and hepatitis C. In August 2020, the Court found that the May 2019 Board decision failed to indicate how the August 2018 VA examination of record substantially complied with the Board’s February 2016 remand directives. The Board’s February 2016 remand directed the examiner to “expressly address and reconcile the Veteran’s account of in-service stressors, including “verbal and physical abuse” from drill instructors and a “traumatic” simulated combat exercise, as well as his extensive post-service history of treatment for depression and related psychiatric symptoms. See BVA Decision (February 2016). The August 2018 report of examination shows that the Veteran reported that he “don’t remember” much about his service, but cited his depression as related to his service and stated that before he went into the service he “had no mental health….” See C&P Exam (August 2018). The examiner noted the Veteran’s complaints of abuse in service but determined that his service personnel records show that he was “a valued member of the unit and does not reflect animus toward the Veteran….” Id. The examiner provided a negative nexus opinion and reasoned that the Veteran’s diagnosed depressive disorder is “related to his post military life stressors including multiple incarcerations related and chronic drug and alcohol abuse….” Id. For an examination on remand to be adequate, it must substantially comply with the Board’s directives, see Stegall, 11 Vet. App. at 271, and it must contain supporting data for the conclusion reached with a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the examiner provided no reconciliation of the Veteran’s statements and the evidence of record as directed in the February 2016 Board remand, and included no reasoned medical explanation connecting the supporting data to the conclusion reached. The examiner provided no explanation or reasoning for finding that the Veteran’s performance reviews showing good performance in March 1978 and November 1978 while stationed at Fort Hood, Texas contradict the Veteran’s reports, or how those performance reviews are indicative of the Veteran’s experiences during Basic Combat Training in October 1976 while stationed at Fort Dix, New Jersey. Additionally, the examiner provided no explanation or reasoning for finding that the diagnosis of major depression in 1995 was related to the Veteran’s multiple incarcerations, which started in 1999. Therefore, to ensure that VA has met its duty to assist, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a bilateral leg condition, to include chronic thrombophlebitis and deep venous thrombosis claimed as blood clots. The Veteran’s counsel contends that a February 1977 in-service ankle injury, which was productive of swelling in July 1978, caused the Veteran’s claimed condition. See Appellate Brief (January 2021). In August 2020, the Court found that the August 2018 VA examination of record was inadequate as it did not substantially comply with the Board’s February 2016 remand directives. The Board’s February 2016 remand directed the examiner to “expressly address the in-service findings of lower-extremity pain, tenderness, and swelling, the SSA determination and records showing that his DVT has rendered him unemployable since February 1995, and the statements by the Veteran and his longtime family friend attesting to a history of “blood clots” and related peripheral vascular disease symptoms persisting since his active service. See BVA Decision (February 2016). However, the August 2018 opinion provides no indication that the examiner considered the in-service findings of lower-extremity pain and tenderness, or the lay statements regarding symptoms persisting since the Veteran’s active service as directed in the February 2016 Board remand. Instead, the examiner provided a negative nexus opinion based on the lack of “evidence of thrombophelebitis [sic] or DVT during active service or shortly after….” See C&P Exam (August 2018). Although the examiner noted that chronic venous disease refers to venous abnormalities of long duration and that the Veteran’s venous insufficiency existed prior to 1989, the opinion indicates that the examiner did not consider whether the in-service findings of lower-extremity pain and tenderness represented the onset of his venous insufficiency. The opinion is inadequate as it did not substantially comply with the Board’s directives, see Stegall, 11 Vet. App. at 271, and indicates that the examiner’s rationale relied on the absence of a diagnosis during the Veteran’s service as the basis for the negative opinion. See Cosman v. Principi, 3 Vet. App. 503 (1992) (an in-service diagnosis is not required to establish service connection); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Therefore, to ensure that VA has met its duty to assist, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. 3. Entitlement to TDIU. The issue of TDIU is inextricably intertwined with the claims of entitlement to service connection for an acquired psychiatric disorder and a bilateral leg condition. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran’s acquired psychiatric disorder, to include PTSD and depressive disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should, among other things, include a discussion of the Veteran’s documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If any history is rejected the clinician must explain why. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. The clinician must opine on: Direct Service Connection (a) Whether the Veteran’s acquired psychiatric disorder, to include PTSD and depressive disorder, at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include the Veteran’s reports of the circumstances of his service. The VA examiner should expressly address and reconcile the Veteran’s account of in-service stressors, including “verbal and physical abuse” from drill instructors and a “traumatic” simulated combat exercise, as well as his extensive post-service history of treatment for depression and related psychiatric problems. Secondary Service Connection (b) Whether the Veteran’s acquired psychiatric disorder, to include PTSD and depressive disorder, is at least as likely as not (1) proximately due to service-connected hepatitis B and/or hepatitis C; or (2) aggravated beyond its natural progression by service-connected hepatitis B and/or hepatitis C. Provide a rationale that addresses causation and aggravation as independent concepts. 2. Obtain a VA medical opinion from an appropriate clinician to address the nature and etiology of the Veteran’s bilateral leg condition, to include chronic thrombophlebitis and deep venous thrombosis claimed as blood clots. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Indicate when the disease was first documented; and opine whether the Veteran’s bilateral leg condition at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. In formulating the opinion, the examiner must consider and discuss the relevance, if any, of the following evidence of record: the February 1977 left ankle injury with pain and assessed as contusion (April 2011 STR-Medical at 48); the April 1977 radiographic findings of soft tissue swelling (April 2011 STR-Medical at 63); the April 1978 right ankle and right knee injury with tenderness and swelling, and assessed as inversion sprain and chondromalacia (April 2011 STR-Medical at 34); the June 1978 complaints of right knee pain and assessed as bursitis (April 2011 STR-Medical at 32); and the July 1978 complaints of right knee and ankle swelling and right knee pain, assessed as mild laxity and chondromalacia (April 2011 STR-Medical at 24). The opinion should clearly identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.